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Equal-pay law hasn’t sparked lawsuits that opponents fear for Texas version

By Nick Swartsell, The Dallas Morning News (MCT)

April 9, 2014

WASHINGTON — Candidates for statewide office in Texas have wrangled recently over an effort to address sex-based wage discrimination by extending the window for lawsuits. But as the campaigns have kicked up dust, the issue has gotten cloudy.

Opponents of the proposed Texas Lilly Ledbetter Fair Pay Act, which Gov. Rick Perry vetoed last year, say it duplicated federal law and would increase unfounded lawsuits. Meanwhile, Democrats say conservatives are standing in the way of equal pay for women.

Experience with the federal law, which was enacted in 2009, suggests both claims are overblown. The federal law hasn’t brought about a flood of frivolous discrimination charges. But there’s little evidence that the pay gap between men and women has narrowed.

The issue of equal pay is important, but the Ledbetter act is “a very narrow fix,” said University of Texas professor Joseph Fishkin, who teaches discrimination law. Among the reasons it hasn’t had much impact, he said, are that pay gaps are driven in part by difference in education and types of job. But the fight, Fishkin said, is nonetheless significant.

“This has become an argument between the parties about equal pay in general. That’s a good discussion to have,” he said. “I don’t think the Ledbetter act is a cure-all, but it is a focal point. The politics go beyond this bill, but I don’t think that’s a bad thing.”

The bill pushed last year by Texas state Sen. Wendy Davis and Rep. Senfronia Thompson, both Democrats, would have extended the time frame women have to sue their employers in state court over wage discrimination. Davis, now the Democratic nominee for governor, has hammered opponent Greg Abbott for saying he also would have vetoed the measure. Abbott says federal law and other state measures protect women from discrimination.

Other conservative candidates have jumped on board. Lt. Gov. David Dewhurst, in a tough primary runoff against Sen. Dan Patrick, recently charged that the bill “would have unleashed torrents of frivolous lawsuits.”

Aides to Dewhurst did not respond for more information. And some experts on wage discrimination law say he’s wrong.

“There’s no indication that the Ledbetter act would increase lawsuits,” said Fatima Goss Graves, vice president of education and employment at the National Women’s Law Center, which supported the federal measure. “It hasn’t at the federal level, and there’s no indication that it would do so in Texas. It certainly wouldn’t increase the number of lawsuits without merit.”

The number of charges filed with the Equal Employment Opportunity Commission, which handles claims of wage discrimination on the federal level, didn’t increase substantially after President Barack Obama signed the Ledbetter law.

Data from the EEOC going back to 1997 shows that an average of 250 charges a year originated in Texas before the act passed. Afterward, the state averaged 259. The most came in 2002, when 339 sex-based wage discrimination charges originated in Texas.

The charges represent complaints made under both the Equal Pay Act of 1964, which targets sex-based wage discrimination specifically, and broader provisions under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, sex, religion, and national origin.

The numbers don’t include every charge filed, but they do present a picture of the Ledbetter act’s minimal impact on the volume of sex-based wage discrimination charges. Though women filing under the Equal Pay Act don’t have to go through the commission, “many charging parties do,” said EEOC spokeswoman Justine Lisser.

The Ledbetter act reinstated a long-standing position by the commission that the 180-day time frame to file wage discrimination lawsuits starts over with each individual discriminatory paycheck, Lisser said, explaining the lack of an increase in charges.

Bureau of Labor Statistics data says that average median income for women working full time is 77 percent less than it is for men — the same gap that existed before the Ledbetter act. The figure has become a major talking point for Democrats, who seek to paint Republicans as hostile to women’s issues.

But that doesn’t control for the dynamics UT professor Fishkin mentions — the fact that women often work different kinds of jobs, for instance. Some experts suggest the gap narrows to 91 cents on the dollar for women working the same jobs as men.

Because many factors affecting the wage gap fall outside the tight focus of the Ledbetter act, its effect on wage disparity would most likely be minimal.

The law gets its name from Lilly Ledbetter, an Alabama employee of Goodyear Tire who sued the company in 1998 over pay that was much lower than comparable male employees’. The case went all the way to the Supreme Court, which in 2007 overturned an earlier ruling in Ledbetter’s favor. The court found that because Ledbetter did not file her suit within 180 days of receiving her first paycheck, the statute of limitations had expired.

As a result, Congress passed legislation affirming that the statute of limitations for wage discrimination lawsuits, generally 180 days, resets after every discriminatory paycheck.